Article 52 - Scope and interpretation
Key facts of the case:
1) The case originated in an application (no. 72508/13) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Ivane Merabishvili (“the applicant”), on 20 November 2013.
2) The applicant alleged that his arrest and pre-trial detention between 21 May 2013 and 17 February 2014 had been unlawful and unjustified, that on 25 September 2013 he had not obtained a proper judicial review of his detention, and that the restriction of his right to liberty had been applied for purposes other than those for which it had been prescribed.
9) In 2003 the so-called “Rose Revolution” erupted in Georgia, after elections perceived as rigged. It consisted of twenty days of peaceful protests, and caused the then President, Mr Eduard Shevardnadze, former First Secretary of the Georgian Communist Party and former Soviet foreign minister, who had led Georgia since 1992, to resign. New presidential and parliamentary elections were held in 2004. They were won by the United National Movement (“UNM”), led by Mr Mikheil Saakashvili, one of the Rose Revolution’s protagonists.
10) The applicant was an active participant in those events, a close collaborator of Mr Saakashvili, and a leading figure in UNM.
11) Until 1 October 2012, when UNM lost the parliamentary elections to the coalition Georgian Dream, led by Mr Bidzina Ivanishvili, the applicant was a member of the Georgian Government: from 2005 to 2012 he was Minister of Internal Affairs and then, from July to October 2012, Prime Minister.
12) On 15 October 2012, two weeks after the parliamentary elections, the applicant was elected Secretary General of UNM, which became the chief opposition party in Georgia.
13) Shortly after his term of office came to an end, after the presidential election on 27 October 2013, Mr Saakashvili, who had been President of Georgia since 2004, left the country.
14) Between 1 November 2012 and 21 May 2013, when he was arrested (see paragraph 26 below), the applicant had made five trips abroad, always returning as scheduled.
15) According to the Government, on 30 November 2012 the applicant had attempted to cross the border at Tbilisi Airport using a fake passport.
16) After checking the passport against the official electronic database, an officer of the Border Police spotted a discrepancy between the photograph in it, which matched the applicant’s appearance, and the other data, including the name, Levan Maisuradze, which differed from the information about the applicant in the database. The officer returned the passport to the applicant’s personal assistant, asking for clarification. The assistant then brought from the applicant’s office another passport, issued in the applicant’s real name and matching all his identification data. After a check of that passport’s authenticity, the applicant was allowed to cross the border.
17) The same day the Border Police opened a criminal investigation into the incident. The head officer immediately went to Tbilisi Airport to interview the officer who had discovered the allegedly fake passport. According to evidence gathered in the course of the ensuing investigation, while he was at the airport the head of the Border Police received a call from the applicant on his mobile telephone. Relying on his status and long-standing personal connections within the Ministry of Internal Affairs, the applicant demanded that the incident not be investigated and that the border-police officer not be asked to give evidence in relation to the incident. According to statements later given to the investigating officers by the head of the Border Police, the applicant had threatened him personally and with regard to his career and used obscene language during their telephone conversation.
18) When interviewed on 1 and 7 December 2012 in relation to the incident, the applicant denied having presented a passport under the name of Levan Maisuradze, and said that he only had four passports, two ordinary ones and two diplomatic ones, all issued under his real name.
Outcome of the case:
For these reasons, the Court
Paragraphs referring to the EU Charter in the joint concurring Opinion of Judges Yudkivska, Tsotsoria and Vehabović:
64) The misuse-of-power test at the European Union level, referred to in the judgment, is not concerned with violations of fundamental human rights. Even if the said cases before the Court of Justice of the European Union did deal with a violation of fundamental human rights, the Charter of Fundamental Rights of the European Union does not contain a provision analogous to Article 18. Article 52 of that Charter, entitled “Scope and Interpretation of Rights and Principles”, deals with limitations on the rights and freedoms enshrined in the Charter and allows for a wider margin of discretion on the part of Contracting States. Article 52 reads as follows:
“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
65) The mandatory provisions of Article 18 do not allow the limitations of the rights and freedoms in the Convention to be applied “for any purpose other than those for which they have been prescribed” in contrast to the more permissive provision of Article 52, which allows “any limitation on the exercise of the rights and freedoms recognised by [the] Charter [to] be provided for by law”.